Lord Wigoder: I rise to support Amendment No. 92 with a marginal preference for that amendment rather than the other amendments in this group. I feel strongly that, unamended, Clause 33 ought not to be allowed to stand.

Like several others Members of your Lordships' Committee, I speak from a lifetime's experience at the criminal Bar, sometimes prosecuting, sometimes defending and sometimes trying cases in which, from

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time to time, sexual offences were involved. I hope therefore that the Committee will consider my next few sentences to be relevant to our discussion.

Over that lifetime I came to have a huge respect for our jury system. I believe that on almost every occasion juries returned the appropriate verdict in accordance with the weight of the evidence. But I am bound to say that over that period too there were cases where the verdict surprised me. I have no evidence as to why juries occasionally return such verdicts because evidence is not permitted as to what takes place in a jury room--I am glad that is so--even though that upsets some slightly dyspeptic academics and journalists.

But looking back over those cases, I detected a perfectly clear pattern of the cases in which juries did not convict, even though the evidence appeared to be overwhelming. I suspect that the noble Lord, Lord Williams of Mostyn, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Bach, will all have had similar experiences. They were cases in which the jury detected that something was wrong. For example, they included cases in which the penalty, if there were to be a conviction, would have been totally disproportionate to the offence. Those cases ranged from a capital murder charge where the jury returned a verdict of manslaughter because they felt that there was strong mitigation on behalf of the defendant, to a much lesser case where the Chief Officer of Police was charged with shoplifting some petty item from Woolworths, and the jury acquitted because, should there be a conviction--never mind the sentence the court would impose--there would be a penalty not only of the loss of his job, but also the loss of his pension.

There were frequently cases where the jury felt that the power of the state was being used unreasonably to oppress the ordinary citizen in a matter in which it was apparent to everybody that the ordinary citizen appeared to have been acting in the public interest. I remember a number of cases under the old Official Secrets Acts where juries returned acquittals though there was perfectly clear evidence to the contrary.

There were cases where the prosecution had seemed to act unfairly; where they had been discovered half-way through the case to have concealed some evidence that they ought to have disclosed to the defence. There were cases where witnesses for the prosecution were prejudiced and biased and discriminatory in their evidence, however weighty it might be. An obvious example of that, perhaps, is the O. J. Simpson trial heard recently in the United States. There were even cases--I hasten to use the past tense in the presence of the noble and learned Lord the Lord Chief Justice--where judges on occasion appeared to be prejudiced in their summings-up in an attempt to secure convictions.

In all those classes of case from time to time the jury would return verdicts of not guilty, despite apparently overwhelming evidence. I am in no doubt that the reason was that the juries, apart from the oath that they had taken, looked at something rather more important; that is, they looked at what they perceived to be the interests of justice and what they perceived to be the fairness of the trial and the fairness of the result. If that is right, let

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us apply that situation to that which will now arise if trials are carried out in accordance with the procedure that is conceived by Clause 33.

It is accepted by everybody that a defendant has a complete right to defend himself. Under the clause he still has that right. The right is not refused or abolished. However, there may be certain penalties attached if the defendant insists on enforcing his right. He has a complete right to defend himself or, if he has a legal representative, to dismiss that representative summarily in the middle of the trial if he wants to do so, without giving any reason.

Jurors see a rape case as a case in which the parties start level. They do not see it in the way that some publicists tend to analyse such cases. They do not assume from the very beginning that the man in the dock is a violent sex pervert and that the girl in the witness box is a chaste and comely maid. They start with no preconceived notions and listen to the evidence produced. What happens? In due course, the girl gives her evidence and the defendant, representing himself, as is his right, is told, "No, sorry; you can't ask any questions". What will the jury think? Let us suppose that it turns out later that the defendant has an alibi and says, "I wasn't there. Somebody else interfered with you, if your account of the interference is true". But the defendant is not allowed to put that. It is no good saying, as is said in one of the later clauses, that the judge can appoint a lawyer to act on behalf of the unrepresented defendant against his will and to put what seem to be appropriate questions. How on earth does a lawyer, seeking to represent someone in that situation, without any instructions, know where to start? How does the lawyer know whether the defence is one of consent, mistaken identity, or whatever?

In the result, I believe that the jury will instinctively react in some cases--not in every case; I do not want to exaggerate--saying, "This procedure is unfair. This man is in the dock and he is presumed at this moment to be innocent. He cannot put his defence because he is not allowed to".

It does not end there. Although the unrepresented defendant is not allowed to cross-examine the complainant, he has a total and complete right at the end of the case to make a speech from the dock. That can be a formidable experience. I recall a Minister of the Crown who spoke for five days solidly in such circumstances. It is very difficult for the judge to interrupt a defendant who is making a speech in his own defence from the dock, without also appearing to the jury to be not entirely impartial. A reasonably plausible defendant can say a lot of things in a speech from the dock when he will not be cross-examined, such as why he was not allowed to ask questions, how unfair it was and if only he had been allowed to ask questions, he would have challenged this, that and the other and perhaps have called evidence about this, that and the other.

It is not in the least difficult to envisage a scenario in which in those circumstances a defendant could gain the sympathy of the jury. The jurors would be solidly on his side and when in due course they returned a verdict,

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there would be a real danger that, however strong the evidence, from time to time, in some cases but not all, they may say, "This system is unfair and we are going to show that it is unfair by returning a verdict of "not guilty". That is what I fear will happen if Clause 33 becomes effective as it stands.

There are alternatives to the difficult problem of unrepresented defendants starting to "misbehave", if you like, to ask oppressive questions and to frighten and upset witnesses. There are now perfectly clear guidelines laid down by the Lord Chief Justice in the case of Brown which mean that the judge is in control of the case. In other words, the judge can take control of the case without the drastic measures that are suggested in Clause 33.

I remember one occasion, many years ago, when such a problem arose while I was trying a sexual offence case. The defendant was incessantly cross-examining the girl in the witness box and I was constrained to say to him, "Look, you have asked that question seven times now. I'll allow you to ask it once more, but then we've got to move on to something else. I am sorry to have to tell you, but if you won't take my advice and do what I suggest there will be no alternative but to ask you to finish your evidence and cease any further questioning". Fortunately, the defendant took the advice. He asked the question once more, received exactly the same answer and then moved on to another topic. Thus the trial proceeded to its end. Although the defendant was convicted, there was never any suggestion that I, as the judge in the case, was behaving improperly--and there were no guidelines in existence to support me.

However, at this stage when the problem is fully recognised and when the Criminal Division of the Court of Appeal has made it perfectly clear that it will strongly support the efforts of judges to control the evil which is being aimed at by the clause, I believe that the powers that the judges have will now be entirely adequate and will prevent this from happening. If the clause is passed, I fear that, as a result of the operation of its provisions, there may well be acquittals in several nasty cases of rape where verdicts of guilty would be fully justified on the evidence.

Lord Lester of Herne Hill: I find myself in a position of some embarrassment. In the first place, I could not attend the Second Reading debate because I was abroad and I very much regret that fact. Secondly, I am going to disagree with my noble friend Lord Thomas. As he said, putting it very tactfully, our party in this Chamber has no official position on the matter at this stage. Therefore, in a sense, we are speaking for ourselves. Thirdly, I am not a member of the criminal Bar, although I sat as an assistant recorder and a recorder for 10 years. There may perhaps be some advantage in my not being a member of the criminal Bar. I love my colleagues from the criminal Bar, but I am bound to say that I find them somewhat conservative when it comes to doing anything to change the traditional elements of evidence and procedure in criminal trials; indeed, even more conservative than I and my colleagues on the civil side.

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I shall address my remarks to something that I know a little about; namely, why I do not think that there is any violation of the fundamental right of the accused to a fair trial involved in Clause 33, why I think that there is no conceivable breach of the European human rights convention and why, if something like this provision is not in place, I think that there will be clear violations of the human rights convention--at any rate, if anything like the scandals that occurred in the two notorious cases were ever to happen again.

As the Committee knows, the impetus for Clause 33 springs from the 1996 rape trial of Mr. Ralston Edwards, who chose to conduct his own defence and then deliberately used the trial to embark upon a humiliating and intimidating cross-examination of his victim for several days while wearing the very same clothes that he had worn when he committed the offence. Naturally his victim suffered extreme emotional and psychological distress at being questioned in such a manner. She complained to the European Commission of Human Rights in Strasbourg of a breach of her right not to be subjected to degrading treatment. I believe that the case is progressing rather well from her point of view. In my view, it is very probable, if not certain, that the United Kingdom will be found to have breached the convention, including the positive obligation to ensure that such abuses do not occur.

A year after the abuse of the criminal justice process in the Edwards trial, another rapist was able to follow the example set by Mr. Edwards. Once again the courtroom was abused publicly to subject victims, in the words of the trial judge,

"to merciless cross-examination clearly designed only to intimidate and humiliate them",

there being several victims on this occasion. Those cases badly damaged public confidence in the administration of justice in this area.

My noble friends Lord Thomas of Gresford and Lord Wigoder and the noble Baroness, Lady Mallalieu, all, I am sure, agree that such abuses of our criminal justice system must not be allowed ever to happen again for the sake both of the victims and of public confidence in our criminal justice system. We must not let our courtrooms be used to scare or intimidate victims of crime so that they are deterred by the ordeal of a humiliating trial from complaining or testifying.

A judge has a difficult task in controlling an unrepresented defendant. I have listened carefully to what has been said so far and I think nothing that has been said suggests otherwise. There are no codes of ethics, no training in questioning standards and legal tests of relevance, and no measures of censure that can be imposed on a non-lawyer who chooses to conduct his own defence. Nor are there many means available to a judge to control the nature and manner of a non-lawyer's questions when that judge is all too aware that too much control before a jury--as the noble Lord, Lord Wigoder, has pointed out in a different context--can prejudice the fairness of a trial and its outcome.

For those reasons, I respectfully disagree with the amendments which oppose Clause 33 because of a wish to test the guidelines recently given by the Court of

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Appeal, Criminal Division. Those guidelines are most welcome. They invoke what is the inherent power of a judge--a power which judges have always had--to prevent abuses occurring in a courtroom. However, that inherent power did not assist the victims in two tragic cases. I believe that the guidelines, although most welcome, are a less sure guide than the guide given by Parliament in legislation. I do not think it is good enough to leave matters to the trial judge, even with the welcome guidelines, when there is a pressing need to restore public confidence in the administration of justice in this area.

It is, I think, entirely appropriate for Parliament to legislate to implement the obligations imposed by the European human rights convention. I do not think anything in Clause 33 usurps judicial functions or breaches separation of powers between the legislative and judicial branches of government. I think it is for Parliament to make the laws relating to evidence and procedure, and for the courts to interpret and apply the law.

Of course it is common ground that an accused has a fundamental right to a fair trial, but that is not the only fundamental right that must be protected in the administration of justice. Victims of crime have a right to be treated with dignity and respect and a right to have their personal privacy respected. Letting alleged sex offenders question their alleged victims directly in a publicly provided forum does not protect those competing rights. A properly proportionate balance has to be found and I believe that the Government's proposals achieve that balance without infringing the convention. The Bill does not take away a basic right of the accused, as I hope briefly to explain in the context of the convention.

The Bill was introduced with a single sentence statement made under Section 19 of the Human Rights Act that the Minister considers its provisions to be compatible with the convention. But the statement did not explain the Minister's reasons for reaching that conclusion. I therefore sought the reasons and the Minister gave them to me in a letter of 18th January 1999, for which I am grateful. As he knows, I hope it will be possible in future for the Government to find a practical way of giving reasons of this kind systematically when a government Bill is published, so that Second Reading debates can be better informed and the matter does not have to be dealt with in the way I am about to deal with it. This is presently the only practical way in which the House can be informed of the Government's reasons.

The noble Lord's letter explained that, in drawing up the provisions in Chapter II, the Government gave careful thought to whether they were compatible with the provisions of Article 6 and the right of the defendant to receive a fair trial. Article 6.3(d) states that the accused has the right,

"to examine or have examined witnesses against him".

He also has the right under Article 6.3(c),

"to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".

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But, as the Minister pointed out, Article 6.3 does not confer an absolute right to instruct a representative of one's choosing nor to benefit from state funding regardless of means. Nor does Article 6.3(d) preclude a national requirement to be represented in criminal proceedings. The case of Croissant v. Germany supports those views.

And, of course, witnesses too have rights under Articles 3 and 8 of the convention. Those articles set out their right to protection from cruel and inhuman treatment and unwarranted intrusion into their private lives. Aggressive, humiliating and unnecessarily prurient questioning of a complainant by an accused person would, as the Minister pointed out--and I agree--raise issues under Articles 3 and 8.

The Government therefore believe, and I share their belief, that the provisions of Clause 33 and the following clauses will provide greater protection in future cases. The Government also believe (and again I share their belief) that the provisions strike an appropriate balance between the right of the accused to a fair trial and the interests of the witness and his or her right to protection under the convention. The Minister drew attention to the case of Doorson v. Netherlands in regard to the need to balance the witnesses and victims against the interests of the accused. He quoted from paragraph 70 of that judgment, which is very helpful.

I agree with those reasons and with the Government's belief that the provisions in Clauses 33 to 39 are fully compatible with the convention. There is no absolute right of the accused, whether at common law or under the convention, to conduct his defence as he pleases even if he does so in a manner which abuses the rights of his alleged victim. Indeed, the judgment of the Court of Appeal indicates as much in giving guidance.

It is said that there is no need for reform given the rarity of such cases. Yet, surely the serious abuse suffered by one victim, let alone three (Mr. Brown questioned two victims) is enough to demonstrate the need for change. There may well be a positive obligation on the Government under the European Convention to take steps to ensure that no other witnesses are so brutally treated in our courts.

The provisions of Clause 33 are well-balanced, circumscribed and necessary. The amendments tabled in this group would emasculate those provisions, whether by leaving the matter, as at present, to the discretion of the trial judge, or postponing the coming into force of Clause 33 until some unspecified future date.

The Home Secretary does not have a monopoly of wisdom. No one does. But he and his colleagues have decided that these provisions are appropriate and necessary to restore public confidence. I see no reason why Parliament should refrain from enacting Clause 33.

10.45 p.m.

Earl Russell: The principles at stake in this debate are about as big and as good as principles can be. On the one hand, there is the need to protect those who are victims of superior power; on the other, there is the need of the accused for the best possible defence and for the

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presumption of innocence while that defence is conducted. Both are the kinds of interest that one might be tempted to describe as paramount. But one cannot have two paramount principles. That is the ground of the debate.

One could approach the debate in one of two ways. One could argue about which of these principles is more important. I am extremely reluctant to take that approach because a decision in favour of either on a question so big would, I think, tip the balance of justice quite inadmissibly one way or the other. I should therefore prefer to approach the debate by asking which of these principles is likely to be more damaged by a decision against it in this case.

I am in total agreement with my noble friend Lord Thomas of Gresford that one cannot conduct a trial on the assumption that the accused is a rapist. My noble friend knows, and I think the Committee knows, perhaps rather better than I might have wished, that that is a principle for which I have in the past contended. What is not quite so widely known is that I have not only attempted to defend a male pupil unjustly accused of rape but have also advised no fewer than three female pupils who had been victims of it. I think I can claim to have tried, within my limited sphere, to apply the principles of natural justice and to hear both sides.

It is notoriously difficult to persuade women who have been victims of rape to take their cases to court. I advised all three of those women to do so. I mention the cases now only because I believe it is too long ago for there to be any risk of their being identified. I was successful in one case out of the three in which I advised the women to take their cases to court. The first advice I gave to the woman was: "If you go to court, you do not do it for your own sake, you do it for the sake of the next woman who comes along". When she came out of the witness box, the first thing she said at the beginning of an hour-long international telephone conversation was: "I am extremely glad you gave me that advice. It was true".

Going to court to make this kind of complaint is painful and difficult at the best of times. Discouraging women from coming forward is distressingly easy. We are told that there are only two such cases of the kind complained of. So far that is true. The risk of copycats is real. I would not mind placing a bet that, if the evidence were discoverable, the number of women who have already been deterred from coming forward by the very considerable publicity given to those two cases would probably be found to be several hundred times that number. That is a real blow to the interests of justice.

The noble Baroness, Lady Mallalieu, said, perfectly correctly, that some women are not deterred from coming forward and from the confrontation. That is true. But, with respect, I do not think that that is good enough. To say that some people can get over the hurdle is not to deny the allegation that the hurdle may be placed too high in the first place. The form of the noble Baroness's statement conceded that there are many women who are deterred. I therefore hope that we can take that as common ground.

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What of the effect that this provision might have on the rights of the accused? If it seriously damaged the interests of the accused, that would clearly be a fatal objection. Again I turn to the words of the noble Baroness, Lady Mallalieu. She said that most accused people had the good sense to use a trained advocate. I do not think that people who use a trained advocate necessarily handicap their defence. Many things have been said in criticism of lawyers--though not by me--but I do not think it has ever been said that, as a general principle, those who employ lawyers are less likely to be acquitted than those who do not. In fact, it is a regular proverb that a barrister who conducts his own defence has a fool for his client.

On one memorable occasion, a highly colourful public figure--whom I will not name in deference to the Rules of Order--was arrested for driving at 120 miles per hour on a motorway. When the case came to court, The Times rather prudently said "Mr. So and So, who is a barrister, conducted his own defence". The said person lost the case--as indeed one might have expected. I do not think the litigant in person--by doing it that way--necessarily increases his chances of acquittal. If he employs an advocate, his chances of acquittal may be increased.

The other point which deeply concerns me is that we misunderstand rape if we take it simply as a sexual offence; it is more an offence of violence than a sexual offence. There is a very real risk--more than in any comparable type of crime that I can think of--that the sheer act of cross-examination may be used as a way of repeating the offence. It is that point about the accused being allowed to cross-examine which really sticks in my gullet. In these cases I think that he does not do it in the hope of an acquittal; he does it in the hope of inflicting future pain. That is something I really do not like.

I have read the directions of the noble and learned Lord, Lord Bingham. They are good directions. But the difficulty with any attempt to control the behaviour of a cross-examiner by judicial direction is that one cannot know what question will be asked until it is asked. When one reads cases in the very different American atmosphere, one is constantly reading reports that "So and So should be stricken from the record". Once a question has been asked, even if the cross-examiner is restrained, the shock or pain created is already there--it is too late to undo it--and the deterrent effect remains on any future person who may wish to complain, even if the question is ruled out of order.

My noble friend Lord Thomas of Gresford drew attention to the risk of people refusing to instruct. It is indeed a risk. So is the risk of people refusing to plead. One cannot stop them doing that; they do it at their own risk. If they wish to do it, they have to be free to do so, even if they know that they suffer from it. Nobody can force the accused to act in his own best interests; we can only do everything we can to make it possible for him to do so if he wants to. I believe that employing a trained advocate normally would be in his best interests.

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We have here two good principles in conflict. I believe that less harm is done to either of those principles by the adoption of the clause than by its rejection.

11 p.m.

Lord Bingham of Cornhill: Your Lordships are all agreed that Clause 33 is directed towards an abuse--but it is an abuse that has only been demonstrated to occur on two occasions; no one has so far unearthed any other examples. Following these two very highly publicised cases, everyone feared that there would be copycat examples. There have not been. Your Lordships know that in the second case the Court of Appeal did all that it possibly could to strengthen the arm of judges, and to make it plain to all concerned that they had the power to stamp on this abuse. There has been no further example.

Because it is an abuse, the noble Baroness Lady Mallalieu, the noble Lord, Lord Wigoder, and I have tabled an amendment which recognises that if the guidance given by the Court of Appeal proves ineffective something more needs to be done. We do not say, or invite the Committee to say, that we should get on with it, that it is not too bad and we can put up with it. We recognise that if the abuse continues something must be done. But we must hope--at present we have every reason to believe--that the advice that has been given will prove to be effective. As has been pointed out, two years have passed without further copycat examples. We urge the Committee to accept that if the advice proves to be effective it is unwise to introduce a measure that deprives the court of discretion to control its own proceedings in the interests of justice--after all, that is what the judge is there for--and involves the appointment of a legal representative who is not responsible to the accused and very probably is not in receipt of instructions from him.

I believe that I take words out of the mouth of the Minister when I say that no one can cross-examine efficaciously and professionally without instructions. That is true. These are not technical points; nor are they an example of judges defending their turf or of amour propre. These questions are related directly to the administration of justice. Those of us who hope that it will not be necessary to bring this provision into force do so because we believe that it opens the door to the risk of unjust convictions. We believe that the jury will not have heard the complainant appropriately cross-examined. It also opens the door to the risk of unjust acquittal for the reason given by the noble Lord, Lord Wigoder; namely, that the jury may feel that the defendant has not had a chance.

It is no answer to say that in order to find himself in this situation the defendant needs to be awkward, truculent and stupid. He may be so, but it is not a crime under the laws of this country to be awkward, truculent and stupid, and certainly not a crime for which he may be sent to prison for many years on end.

I have never suggested in this House or anywhere that the provision is contrary to the European convention. The argument of the noble Lord, Lord Lester, is one that I readily accept. But it is not so long since what gripped

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the popular press and rightly engaged the attention of your Lordships was the series of unjust convictions which were a blemish not simply on the criminal justice system but on our national life. This House must act at all costs to avert the risk of miscarriages of justice. It is for that reason that I, in company with the noble Baroness and the noble Lord, believe it to be urgently important that this provision should not be brought into force unless and until it is clearly shown by practical experience to be needed.